Saying that too often definitely impairs one's career prospects. Saying it at all far enough up the chain of command/supervision makes that consequence rather more… immediate. As I have precisely no career prospects in the present or incoming administrations, I'll do it, remembering that speaking truth (or advocating alternative viewpoints when "truth" is indeterminate) is not a declaration of sartorial impropriety.
Secretary (Gen) Austin, you have recently attempted to impose what appears to be unlawful command influence (PDF) upon decades-long criminal proceedings involving specific defendants and alleged offenses — proceedings that began outside of your personal purview — by rejecting plea agreements. This decision cannot be justified either in principle or on these facts. In short, sir, you are in the wrong here, and your attempt undermines both the justice system and the chain of command. Not just the military justice system, but the entire apparatus; not just the chain of command to GITMO, but every chain of command involved with post-activity consequences to be imposed on non-US persons (which, ultimately, is all of them). That imperils your oath of office, and everything you've stood for in the past half century — since you took that oath upon entering the United States Military Academy to support and defend the Constitution of the United States against all enemies, foreign and domestic. I respectfully suggest that you trust your learned subordinates, rescind your statements, disqualify yourself from further "supervision" of the process, and allow proceedings still in pretrial mode to continue.
Your post-plea decision to reject the plea deals in this matter appears — so far as is in any currently-available public record — to be unaccompanied by specific implied threats of retribution against the officers (and others) involved in making a decision on the facts before them.1 That, at least, is somewhat less egregious than it could be (and has been). The standard, however, is not "slightly less egregious." It is to not only do justice, but be seen to do justice — and as Gilmet and similar matters imply but seldom state explicitly, that includes nonjudicial decisionmakers. That is the point of having a military (and related) justice system, of the general concept of the rule of law, of both the entirety of and specific provisions in the Constitution.
The particular sequence of events at issue here rests upon two decades of (entirely understandable) public outrage.2 This points at the fundamental tension between "democratic will" and "professional judgment." You are not a lawyer, so you are not charged with that particular version of "professional" (although those who negotiated and accepted the plea agreements at issue are, a fact that should inform your own decision process). You are, however, by training a professional military officer — and you have retaken that oath you took in 1971 to place loyalty to the Constitution above all else. It is bad strategy to undermine one's own principles of command and control in pursuit of small immediate advantages, and especially so when that pursuit seeks an irreversible escalation on the spectrum of conflict.3 These plea agreements seek to impose the only sanction short of the individual-instance equivalent of total nuclear war: One cannot deescalate from the death penalty once imposed and executed.
Delegating leadership and execution is a necessary element of strategy, of government, of state policy. The irony that the real reason delegation is both necessary and appropriate when dealing with individual, tactical matters is that the lower levels of leaders making those decisions have specific competencies and information not available to their superiors, as often as the converse presumed in "civilian control of the military," appears to have escaped almost everyone. This tension is implicit in the precommisioning programs throughout the US military (and that of most democratic nation-states), and throughout further professional military education and command-selection criteria thereafter.
Please reconsider your decision to overrule the underequipped leaders in actual tactical control who — very much like Operation Eagle Claw — have detailed appreciations of tactical specifics that you do not. Unless, that is, your decision is based upon what must be at minimum breaches of attorney-client privilege, which would very much resemble destroying the village to save it.4
Mr Secretary — General — please reconsider. Conceive that just as you believe those who negotiated and accepted these plea agreements might be wrong (from at minimum a certain perspective), so might you. Trust the years of training, the years of investigation, that have gone into those decisions made by those in a position that you might well have been in yourself. Trust the remainder of the Constitutional process. Remember that under these plea agreements, those individuals are pleading guilty and are being incapacitated from repeating their conduct, without achieving a martyrdom whose attraction is literally foreign to you and especially to those to whom you answer.
In short: Do not demand complete victory in a context in which victory is inherently incomplete.
- I have precisely no confidence that those around you, in both the present and incoming administrations, have similarly refrained. Unlawful command influence occurs by proxy, too; that is precisely what was at issue in Gilmet. And, for that matter, at Nuremberg, in post-Yugoslavia proceedings, in… Delegation does not remove command responsibility.
- I do not believe that I am saying anything you have not considered, particularly since you held multiple command positions concerning the conflict zone. Neither am I saying anything not already said behind closed doors: That the very nature of these proceedings arises from information-gathering sources and methods — indeed, from specific information — that nobody who actually knows anything wants revealed in public. Not even, if it thought about it (which almost by definition it cannot and will not), the Mob.
The disturbing corollary here is that rejection of these plea agreements — agreements which would keep the defendants in custody for the remainder of their lives, just short of the maximum possible penalty — appears based upon not just policy imperatives, but relevant information that has been withheld from those charged with making individual-case decisions. That is not good military strategy.
- See, e.g., Frank Hoffman, Examining Complex Forms of Conflict: Grey Zones and Hybrid Challenges, 7(4) Prism 30, 32 (2018) (PDF). This is not at all a controversial or unfamiliar concept; in broad strokes, it has been a fundamental part of officer training throughout the nuclear age, and is implicit in centuries-old doctrine. Cf. e.g., Carl von Clausewitz, Vom Kriege ("On War") (1832, this trans. 1874)("War is only a continuation of State policy by other means").
- The controversy over both the origin and later uses of this statement is not just relevant, but is indeed the point.